Chavez v. Berryhill

ORDER GRANTING MOTION TO REMAND AND REMANDING MATTER
TO AGENCY FOR ADDITIONAL PROCEEDINGS

KEVIN
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.

Plaintiff
Kimberly Chavez seeks review of the Social Security
Administration's denial of her application for disability
insurance benefits.[1]See 42 U.S.C. § 423. With
the consent of the parties to conduct dispositive
proceedings, see 28 U.S.C. § 636(c), the Court
has reviewed the administrative record and considered
Chavez's motion to remand and supporting memorandum, the
agency's response in opposition, and Chavez' reply.
(See Docs. 25, 26, & 29). Having done so, the
Court concludes that the Administrate Law Judge
(“ALJ”) committed reversible error in evaluating
whether Chavez's intellectual impairment meets or equals
Listing 12.05C and Chavez is, as a result, per se disabled
under the Social Security Act. Accordingly, the Court
GRANTS Chavez's motion and
REMANDS the matter for additional
proceedings.

I.
BACKGROUND

Chavez
alleged disability as of August 5, 2011 at age 27 arising
from her intellectual functioning and continuing until
December 31, 2016, the date she last qualified for benefits.
(AR 13; 15). Following a hearing, ALJ Barry O'Melinn
denied Chavez's application for benefits. (AR 13-22). At
step three of the five-part framework[2] used to evaluate disability,
the ALJ concluded that Chavez's borderline intellectual
functioning, although a severe impairment, did not meet or
equal Listing 12.05C. (AR 17). A finding that this impairment
satisfied Listing12.05C would have required an award of
benefits for an “intellectual disorder.”
(Id.); 20 C.F.R. part 404, subpt P, app. 1, §
12.05. At step four, the ALJ determined that Chavez retained
the residual functional capacity (“RFC”) to
perform her past work as a cook's helper. (AR 21). Since
Chavez was capable of performing this job, the ALJ did not
proceed to step five of the sequential process. (AR 21-22).
The ALJ's adverse determination became the agency's
final action when the Appeals Council denied review on
November 9, 2016. (AR 1-7).

II.
STANDARD OF REVIEW

This
Court reviews the ALJ's decision to determine whether it
is supported by substantial evidence and the ALJ applied the
correct legal standards. See Hendron v. Colvin, 767
F.3d 951, 954 (10th Cir. 2014). If substantial evidence
supports the conclusion that the plaintiff is not disabled
and the ALJ followed the law, the plaintiff is not entitled
to relief. See Langley v. Barnhart, 373 F.3d 1116,
1118 (10th Cir. 2004). The term “substantial
evidence” means that which “a reasonable mind
might accept as adequate to support a conclusion.”
Id. at 1118 (citation and internal quotation marks
omitted). Even if the Court could reach the opposite
conclusion, the decision must stand if the record as a whole
is not “overwhelmed by other evidence” to the
contrary or unless a “mere scintilla” supports
it. Salazar v. Barnhart, 468 F.3d 615, 621 (10th
Cir. 2006).

III.
ANALYSIS

Chavez
makes three arguments in support of remand: (1) the ALJ erred
at step three in concluding that Chavez's intellectual
functioning did not meet or equal Listing 12.05C; (2) the ALJ
improperly evaluated the opinions of consulting psychologist,
Mary Loescher, Ph.D., and the state agency doctors in
fashioning Chavez's RFC; and (3) the ALJ's RFC errors
improperly tainted the testimony of the vocational expert
during the administrative hearing. Because the Court
concludes that the ALJ employed the incorrect legal standard
in evaluating whether Chavez satisfied Listing 12.05C and
will have to reexamine Dr. Loescher's opinion on remand
in connection with performing the correct analysis, the Court
does not reach Chavez's other assignments of error.

A.
Step-Three Determination

Listing
12.05C mandates a finding of disability where the plaintiff
proves “[a] valid verbal, performance, or full scale IQ
of 60 through 70 and a physical or other mental impairment
imposing additional and significant work-related limitation
of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 12.05C. To qualify, Chavez must prove not only that
her intellectual impairment “me[t] all of the specified
medical criteria, ” but that she also displayed
“significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially
manifested . . . before age 22” as encompassed in
Listing 12.05's so-called capsule definition.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990);
Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir.
2009). “An impairment that manifests only some of [the
Listing's] criteria, no matter how severely, does not
qualify.” Id. In determining whether a
plaintiff satisfies a Listing, the ALJ may consider only
medical evidence. See 20 C.F.R. § 404.1526(b).
Moreover, the ALJ must “set out specific findings and .
. . reasons for accepting or rejecting evidence at step
3.” Clifton v. Charter, 79 F.3d 1007, 1009
(10th Cir. 1996). Here, the parties do not dispute that
Chavez's full-scale IQ score falls within the range.
Thus, the dispute focuses on whether Chavez satisfied the
capsule definition and proved she suffered from a qualifying
“other mental health impairment” in addition to
her low quotient score.

1.
Capsule definition

The
Commissioner argues that “[s]ubstantial evidence
supports a finding that [Chavez] did not have significantly
subaverage general intellectual functioning with deficits in
adaptive functionally initially before 22, as required by the
listing.” (Doc. 26, p. 6) This contention lacks merit
for a simple reason. The ALJ did not make any
findings as to the capsule definition at all, which means the
Court cannot undertake the substantial-evidence inquiry or
otherwise analyze the issue in the first place. See
Havenar v. Astrue,438 Fed.Appx. 696, 699 (10th Cir.
2011) (explaining that the “ALJ never made any findings
regarding the capsule definition, and it would be beyond the
scope of appellate review to make such a finding in the first
instance”) (citing Haga v. Astrue, 482 F.3d
1205, 1207-08 (10th Cir. 2007)). For the Court to consider
the merits of the Government's argument would require the
Court to create “an impermissible post-hoc
justification for the ALJ's deficient explanation.”
Id. Because the ALJ did not hold Chavez to the
capsule definition, the Court declines to do so for the first
time on appeal.

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Other ...

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